Landau v The Big Bus Company Ltd & Anor

An appellate court should not interfere with a trial judge’s primary factual findings unless there is an identifiable error or the decision cannot reasonably be explained or justified. The same caution applies where negligence involves an evaluative judgment about the degree of care required, provided no question of legal principle arises. A driver’s duty remains one to take reasonable care; it does not require a counsel of perfection. The assessment must account for the circumstances as a whole, including the traffic conditions, the manoeuvre being undertaken and the conduct of other road users. Where the trial judge’s conclusion that drivers were not negligent rested on primary findings that were properly open to him, an alternative observation about another road user’s likely conduct was not necessary to the result, although it could be upheld as correct in the circumstances.

A motor scooter rider was seriously injured when his scooter became trapped between a tourist bus and a car as the vehicles negotiated a sharp left turn in London. He brought negligence claims against the bus company, its driver and the car driver.

Foskett J dismissed the claim after finding that the claimant had not established his position at the traffic lights, that neither driver had driven below a reasonable standard, and that the claimant’s riding had contributed substantially to the accident. The claimant appealed, challenging the factual findings, the assessment of the drivers’ care, the judge’s alternative reasoning about holding back, and the finding of contributory negligence.

1. Appeal dismissed. The trial judge was entitled to find that the claimant was not in the position he described while the vehicles were stationary. That finding was based on his assessment of the witnesses and supported by cogent reasoning. The judge’s further suggestion that the claimant was in a blind spot was not a positive finding of fact and was not necessary to the reasoning. The essential consequence was that the claimant had failed to prove that the drivers ought to have seen him at the lights (paras [21]-[27]).
2. The appellate court applied the established caution required when reviewing primary facts and evaluative conclusions concerning negligence. It found no material error, evidential foundation failure or misunderstanding justifying intervention. The trial judge had considered the evidence in a clear and methodical judgment, but was not required to set out every factor informing his overall evaluation (paras [18]-[20], [37]).
3. Both drivers were entitled to be assessed by the ordinary standard of reasonable care. The bus driver was entitled first to concentrate on taking a wide turn safely around the central reservation and protecting pedestrians, and there was no basis for finding that she should have seen the scooter sooner. The car driver’s positioning was more problematic, but the evidence remained unclear and the judge had conscientiously evaluated it. His conclusion that the car driver had not fallen below a reasonable standard was therefore open to him (paras [28]-[38]).
4. The judge’s reference to a counsel of perfection did not impose or apply such a test. His citation of Ahanonu v South East London and Kent Bus Company merely underlined that the correct question was whether reasonable care had been taken (paras [35], [38]).
5. The judge’s observation that the drivers could assume, in the circumstances, that the claimant would hold back was an alternative consideration and was not necessary to the conclusion that neither driver was negligent. The court nevertheless considered that observation correct in the circumstances. The issue of contributory negligence consequently did not arise on the primary conclusion (paras [39]-[41]).

• Court of Appeal (Civil Division) — appeal from the Queen’s Bench Division judgment of Foskett J, reported as [2013] EWHC 3281 (QB). Appeal dismissed.